McMorn, R (on the application of) v Natural England & Anor

Natural England must apply the statutory and Directive-based licensing scheme consistently and for its intended purpose. It may scrutinise an unusual application carefully, but cannot impose a materially higher evidential threshold for one protected species because of controversy, cultural attitudes or public opinion. Any guiding policy must be disclosed. The derogation for preventing serious damage to livestock is preventive and must not be applied so restrictively that it becomes effectively unavailable. Where a lesser form of licensed control is considered, material practical issues must be investigated and the applicant given a fair opportunity to address them.

The claimant, a gamekeeper, challenged Natural England’s refusal of his fifth application for a licence to control common buzzards alleged to be causing serious damage to pheasant poults. The application sought lethal control; Natural England also considered and rejected live capture and removal as a lesser alternative. The challenge alleged an undisclosed policy, unlawful reliance on public opinion, inconsistent application of policy, irrationality, failure to give effect to the statutory derogation, and unfair consideration of live capture. The court also determined whether the claim fell within the Aarhus Convention costs regime.

The claim succeeded and the decision of 5 June 2014 was quashed.

1. The Wildlife and Countryside Act 1981 gives effect to the Birds Directive derogation for preventing serious damage to livestock where there is no other satisfactory solution. The derogation is preventive. Natural England had no free-standing discretion to treat common buzzards more restrictively than other species covered by the same derogation without lawful justification.
2. Natural England had adopted an undisclosed policy requiring substantially more evidence and proof of individual predatory birds in raptor cases. That approach was not rationally justified by conservation status, species characteristics or lack of research. It was materially influenced by public controversy and hostile public opinion, which were irrelevant to the substantive outcome.
3. The successive demands for further evidence, reopening of previously accepted issues and requirement to prove an untested specialised-predator theory made the derogation excessively difficult to operate. Natural England thereby undermined the statutory balance and acted beyond its powers. The decision was also irrational on conventional Wednesbury review.
4. A public body may change its view on successive applications if it acts in good faith and rationally. Here, however, the change in approach contributed to the unlawfulness of the decision.
5. Natural England had power to grant a lesser form of control on an application for lethal control. Having considered live capture, it acted unfairly and unlawfully by relying on the absence of information about cost and practicalities without making obvious enquiries or inviting the claimant’s response.
6. The claim concerned a decision under national environmental law and therefore fell within the Aarhus Convention and Civil Procedure Rules 1998 Part 45.41, regardless of whether the claimant sought more or less wildlife control.